An appeal filed challenging a conviction for harbouring dacoits recently prompted the Calcutta High Court to reiterate that the retracted confession by a co-accused cannot be the primary ground for convicting a person.

"In Kashmira Singh Vs. State of M.P., the Supreme Court held retracted confession of an accused is not substantive evidence against a co-accused and can only lend assurance to corroborate other evidence on record against the latter."

In view of this ratio, the High Court held that the retracted confession of a co-accused can, at best, be used as corroborative evidence, provided the other evidence on record, if believed, is sufficient to sustain a conviction.

Applying these principles, the Court proceeded to allow the appeal before it, holding that,

"As the substantive evidence on record is too flimsy and unconvincing, conviction of the appellant cannot be founded on the retracted confession of a co- accused. Accordingly, I am of the opinion that the appellant was not a party to the conspiracy to commit dacoity at the convent and his conviction under section 120B IPC is liable to set aside."

Factual Background

The appellant in the case, Gopal, was one of six persons convicted in a case concerning a 2015 robbery in a convent and the rape of a nun from the convent.

As per the complaint given by the Principal of the convent, the accused tied nuns of the convent, ransacked the place and stole jewellery. One of the men stood accused of having raped a nun.

All six men had convened some days earlier at Gopal's house to attend his niece's marriage. One of the invitees, Milan, was also related to Gopal from his wife's side. The five invitees were arrested following the marriage on account of their raucous conduct, but later released by the police. The crime was committed, following their release by the police.

All six men were convicted for hatching the conspiracy to commit the dacoity by the trial court. An appeal challenging the same was filed by Gopal, who was convicted for the offence of harbouring the dacoits read with a criminal conspiracy charge.

On when a person is guilty for harbouring a dacoit under Section 216, IPC

The case also served to recount the ingredients that must be satisfied to be guilty of being an accessory to dacoity or harbouring a dacoit under Section 216 of the Indian Penal Code (IPC).

Inter alia, the Bench had occasion to remark,

"Mere association with the accused persons owing to family connection, in my opinion, cannot give rise to an inference of meeting of minds between the appellant on the one hand and other accused persons on the other hand to commit the dacoity."

The Court eventually found that there was no independent evidence to convict Gopal of the crime. As noted above, the Bench firstly noted that a familial relationship shared by Gopal and one of the accused, Milan, does not, by itself, denote the meeting of minds necessary to implicate him for the conspiracy.

In this backdrop, the Court proceeded to note that in order to attract the offence of harbouring dacoits under Section 216, IPC, the accused must have knowledge that the person s/he is harbouring has either committed dacoity or is planning to commit dacoity.

The Court relied on the 1925 case of Emperor v Sunderdas to comment on the extent of knowledge necessary to incriminate a person for harbouring dacoits, i.e. knowledge that the persons harboured intend to commit a particular act of dacoity.

Penal liability would not be attracted if a person harbours dacoits in general. It must be proved that he had harboured such dacoits who intended to commit a ‘particular dacoity’.

Calcutta High Court

However, in this case, there was no evidence to attribute to Gopal any knowledge that there was a plan to commit dacoity at the convent.

”In the present case there is no evidence with regard to knowledge of the appellant about the prior crimes allegedly committed by the other accused persons. One of the accused persons Milan is a relation of the appellant. The latter in his confessional statement has clearly explained that the appellant permitted Milan and his associates to stay at his residence in deference to such family tie ... the conduct of the appellant in extending hospitality to Milan and his friends was neither unnatural nor opposed to normal human behavior…

.... There is no evidence on record that the appellant was aware that they were planning to commit dacoity in the convent. Raucous and unbridled behaviour of the accused persons during marriage or their expensive habits without anything more would not create an irresistible inference in the mind of a reasonable man of ordinary prudence that they were planning to commit dacoity in the convent.”

In view of these observations, the Court proceeded to allow the appeal.

[Read the Judgment]

Calcutta High Court on Retracted Confession of Co-accused - Judgment.pdf